P. v. Johnson
In a plea bargain, the People dismissed enhancement allegations based on defendants prior convictions and defendant agreed that if he violated the terms of his probation the trial court could impose the upper term sentence. Defendant violated his probation and the court imposed the upper term, citing the dismissed priors as the only aggravating factors. Defendant appeals the sentence contending that the trial courts decision to impose the upper term based on his prior convictions violated his right to a jury trial and proof beyond a reasonable doubt under Cunningham v. California (2007) 549 U.S. 270. Alternatively, defendant contends that his plea agreement contained an implied understanding that the dismissed priors would not be considered as aggravating factors in sentencing should he violate his probation. We conclude that such consideration in imposing the upper term sentence did not violate defendants constitutional rights under Cunningham. We further conclude that although consideration of defendants prior convictions to impose the upper term breached an implicit term of his plea bargain, the error was harmless because it is not reasonably probable defendant would obtain a better result on a remand for resentencing. Therefore, Court affirm the judgment. Court grant defendants unopposed motion to correct the trial courts minute orders and abstract of judgment to show that he was convicted under Penal Code section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury.
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